of the narrative. (m) When a party comes to the conviction that he is about to die, he is in the same practical state as if called on in a court of justice under the sanction of an oath, and his declarations as to the cause of his death are considered equal to an oath, yet they are nevertheless open to observation. For though the sanction is the same, the opportunity of investigating the truth is very different, and therefore the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of more full investigation by the means of cross-examination. (n) It may be added also that the deceased in many cases is labouring under injuries which may affect the brain, and prevent the possibility of reason guiding the words that may be uttered, and yet the means of ascertaining the state of his mind may be such as to render it in the highest degree difficult to discover whether a statement has been made under a morbid delusion of the mind, or in the tranquil exercise of calm reason, operated upon alone by the awful consciousness that he must almost immediately render an account to an all-knowing Creator.

Hearsay in proof of public rights. Hearsay evidence is also admissible for the purpose of proving public rights, and rights in the nature of public rights. (0) Thus in questions concerning the boundary of parishes or manors, traditionary reputation is evidence: (p) and the declarations of old persons deceased have been admitted in such cases, although they were parishioners and claimed rights of common on the wastes, which their evidence had a tendency to enlarge. (q) But although general reputation is evidence on a question of boundary or custom, yet the tradition of a particular fact (as that turf was dug or a post put down in a particular spot) is not admissible. (r)

:

Deceased persons making statements against their own interest. Declarations or statements made by deceased persons, where they appear to be against their own interests, have in many cases been admitted as entries in their books charging themselves with the receipt of money on account of a third person, (8) or acknowledging the payment of money due to themselves. (t) Thus a written memorandum by a deceased man-midwife, stating that he had delivered a woman of a child on a certain day, and referring to his ledger in which a charge for his attendance was marked as paid, was thought

(m) Greenl. Ev. 192. 1 Phill. Ev. 292.

(n) Ashton's case, 2 Lew. 147, per Alderson, B. A striking instance of the danger of trusting to statements made after a mortal wound has been inflicted occurred in R. v. Macarthy, Gloucester Sum. Ass. 1842. The prisoner was indicted for murder, and the deceased had been stabbed by the prisoner whilst he was pursuing him in order to give him into custody for an assault, and the deceased expressly stated that the prisoner had knocked him down, but two companions of the deceased, who were present during the whole time, distinctly proved that the deceased was not knocked down at all. C. S. G.

(0) 1 Phill. Ev. 238, 241. 1 Stark. Ev. 49. Rosc. Ev. 28.

(p) Nicholls v. Parker, 14 East, 331, in

note to Outram v. Morewood. And it seems that a map made from the representations of a deceased person, who pointed out the boundaries, would be evidence of such boundaries. R. v. Milton, 1 C. & K. 58. Erskine, J.

(q) Nicholls . Parker. But such declarations must not have been made post litem motam, that is, after the very same point or question has become the subject of controversy. R. v. Cotton, 3 Campb. 1 Phill. Ev. 260.

444.

by the Court of King's Bench to have been properly received in evidence, upon an issue as to the child's age. (u) So where the point in issue was whether a certain waste was the soil of the defendant, entries by a steward, since deceased, of money received by him from different persons in satisfaction of trespasses committed on the waste were admitted in evidence, to shew that the right to the soil was in his master, under whom the plaintiff claimed. (v) So receipts for rent found in the possession of a tenant are evidence that the person who signed them was seised in fee. (w) On the same principle, entries in the books of a tradesman by his deceased shopman, who thereby supplies proof of a charge against himself, have been admitted in evidence, as proof of the delivery of the goods, or of other matter there stated within his own knowledge. (x) But where the effect of the entry is not to charge the servant, it is not evidence. Thus, in an action for the hire of horses, an entry by the plaintiff's servant, since dead, stating the terms of the agreement with the defendant, is not evidence. (y) Such declarations are admissible only on the ground that they are against the proprietary or pecuniary interest of the party making them, and a declaration is not receivable in evidence, because it would subject the party to a prosecution if he were living. Thus, if A. were indicted for murder, and B., who was dead, had made a declaration that he was present when the murder was committed, though that declaration was against his interest, and would have subjected him to a prosecution if living, yet it would not be admissible after his death. (2) Where an entry or declaration is made by a disinterested person in the course of discharging a professional or official duty, it is, in general, admissible after the death of the party making it. Thus, a notice endorsed as served by a deceased clerk in an attorney's office, whose duty it was to serve notices, is evidence of service. (a) An entry of dishonour of a bill, made by a notary's clerk in the usual course of business, is evidence of the fact of dishonour, after the clerk's decease. (b) And if a declaration be made in the discharge of a duty by a deceased person, it is admissible, whether oral or written. (e) In all these cases, the

(v) Barry v. Bebbington, 4 T. R. 514. (w) Doe dem. Blayney v. Savage, 1 C. & K. 487.

(x) 1 Phill. Ev. 319. Price v. Lord Torrington, 1 Salk. 285.

(y) Calvert v. Archbishop of Canterbury, 2 Esp. 646. Rosc. Ev. 34. Webster v. Webster, 1 F. & F. 401. Smith v. Blakey, L. R. 2 Q. B. 326.

(z) The Sussex Peerage case, 11 Cl. & F. 85, per Lord Lyndhurst, C. In that case a declaration by a clergyman that he had solemnised a marriage, was held not to be admissible, on the ground that it

might have subjected the clergyman to a prosecution for solemnising the marriage. Standen v. Standen, Peake, N. P. C. 45, was strongly questioned in this case.

(a) Doe v. Turford, 3 B. & Ad. 890, Doe v. Skinner, 3 Ex. 84. R. v. Dukinfield, 11 Q. B. 678. Price v. Lord Torrington. 1 Salk, 285. Sturla v. Freccia, 5 Ap. Cas. 623.

(b) Poole v. Dicas, 1 New Cases, 649. (c) Per Lord Campbell, C. J. Stapylton v. Clough, 2 E. & B. 933; 23 L. J. Q. B. 5. The Sussex Peerage case, 11 Cl. & F. 113. By the Jewish law the custom is that children are circumcised on the eighth day from their birth, and it is the duty of the Chief Rabbi to perform this rite, and make an entry of it in a book; but it has been held that an entry made by a Chief Rabbi of a circumcision is not evidence after his death. Davis v. Lloyd, 1 C. & K. 275, Lord Denman, C. J., and Patteson, J.

person who made the entry must be proved to be dead. (d) Where it appeared that the entry was in the handwriting of a banker's clerk, who was then in the East Indies, it was held inadmissible. (e)

There is a distinction between declarations against interest and declarations made in the discharge of a duty. The former declarations are evidence of all the facts stated; the latter only of the facts which it was the business of the writer to state. (f) So entries against interest are evidence whensoever made. The latter entries, in order to be evidence, must generally be contemporaneous with the act done. (g)

There are other exceptions to the general rule against the reception of hearsay evidence, such as the admission of declarations in cases of pedigree, and of old leases, rent-rolls, surveys, &c., which can occur so seldom in criminal proceedings, that it is not thought necessary to take further notice of them in this Treatise. (h)

(d) Cooper v. Marsden, 1 Esp. 2 by Lord Kenyon, C. J.

(e) Ibid. Stephen v. Gwenap, 1 M. & Rob. 121.

(f) See Percival v. Nanson, 7 Ex. 1; 21 L. J. Ex. 1.

326.

ter.

(g) See Smith v. Blakey, L. R. 2 Q. B.

(h) See post, as to evidence of charac

CHAPTER THE SECOND.

THE PROOF OF NEGATIVE AVERMENTS, p. 400.- THE RULE

ISSUE, p. 403. –

THAT THE EVIDENCE MUST BE CONFINED TO THE POINT IN
WHAT ALLEGATIONS MUST BE PROVED,
AND WHAT MAY BE REJECTED, p. 428; AND THEREWITH

OF SURPLUSAGE AND OF VARIANCE.

SEC. I.

Of the Proof of Negative Averments.

It is a general rule of the law of evidence, in criminal as well as in civil proceedings, that it lies on him who asserts the affirmative of a fact to prove it, and not on him who asserts the negative, unless under peculiar circumstances where the rule does not apply. (a) Thus, on an indictment for bigamy, where the first marriage was by licence, and the prisoner appeared to be under age at the time, it was held that it lay on the prosecutor to prove the consent of parents, required by the 26 Geo. 2, c. 33, in order to shew the marriage valid, and not on the prisoner to prove the negative in his defence. (b)

In criminal proceedings, however, where negative averments usually impute a breach of the law to the defendant, the operation of this rule is sometimes counteracted by the presumption of law in favour of innocence; which presumption, making, as it were, a prima facie case in the affirmative for the defendant, drives the prosecutor to prove the negative. (c) Thus, on an information against Lord Halifax, for refusing to deliver up the rolls of the auditor of the Exchequer, the Court of Exchequer put the plaintiff upon proving the negative that he did not deliver them; for a person shall be presumed duly to have executed his office till the contrary appear. (d) On an indictment for obtaining money, &c. under false pretences the prosecutor must prove the averments negativing the pretences. In an action for the recovery of penalties under the Hawkers' and Pedlars' Act against a person charged with having sold goods by auction in a place in which he was not a householder, some proof of this negative, namely, of the defendant not being a householder in the place, would be necessary on the part of the plaintiff. (e) On the trial of an indictment on the 42 Geo. 3, c. 107, s. 1, which made it

(a) Gilb. Ev. 131. Bull. N. P. 298.

(b) R. v. Butler, R. & R. 61. R. v. Morton, ib. 19, in note to R. v. James, ante. But since the 4 Geo. 4, c. 76, a marriage by a minor without consent is valid. R. v. Birmingham, 8 B. & C. 29; 2 M. & R. 230.

(c) The same rule applies in civil proceedings. The principal cases on the sub

ject are Monke v. Butler, 1 Roll. Rep. 83,
3 East, 199. R. v. Hawkins, 10 East, 211.
Powell v. Milbank, 2 W. Bl. 851. S. C. 3
Wils. 355. Williams v. East India Com-

pany, 3 East, 193. R. v. Twyning, 2 B. &
A. 386. Doe v. Whitehead, 8 A. & E. 571.
(d) Bull. N. P. 298.
(e) 1 Phil. Ev. 494.

felony to course deer on an enclosed ground,' without the consent of the owner of the deer,' it ought to have appeared from the evidence produced on the part of the prosecution that the owner had not given his consent. (f)

But where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favour of innocence is not allowed to operate in the manner just mentioned; but the general rule, as above stated, applies, viz. that he who asserts the affirmative is to prove it, and not he who avers the negative.

6

Thus upon a conviction under the 5 Anne, c. 14, s. 2, against a carrier for having game in his possession, it was held sufficient that the qualifications mentioned in the 22 & 23 Car. 2, c. 25, were negatived in the information and adjudication, without negativing them in the evidence. (g) The question is,' said Lord Ellenborough, in that case, upon whom the onus probandi lies; whether it lies upon the person who affirms a qualification, to prove the affirmative, or upon the informer who denies any qualification, to prove the negative. There are, I think, about ten different heads of qualification enumerated in the statute, to which the proof may be applied; and according to the argument of to-day, every person who lays an information of this sort is bound to give satisfactory evidence before the magistrates to negative the defendant's qualification upon each of those several heads. The argument really comes to this, that there would be a moral impossibility of ever convicting upon such an information.' (h)

In R. v. Hanson (i) the rule was again considered and laid down by the Court of King's Bench. In that case there had been a conviction by two justices for selling ale without an excise licence. The information negatived the defendant's having a licence; but there was no evidence to support this negative averment; the only evidence to support the conviction being that the defendant had in fact sold ale. The question was, whether the informer was bound to give evidence to negative the existence of a licence. In support of the conviction it was contended, that such evidence was unnecessary, and that it lay upon the defendant to prove that he had a licence; for it is a rule, both of the civil and the common law, that a man is not bound to prove a negative allegation; R. v. Turner was cited as an express authority on the point. Abbott, C. J., 'I am of opinion that the conviction is right. It seems to me that this case is not distinguishable from R. v. Turner. It is a general rule that the proof of

(f) R. v. Rogers, 2 Campb. 654. See also R. v. Hazy, 2 C. & P. 458, and R. v. Argent, R. & M. C. C. R. 154, ante, p. 366; the former of which cases was an indictment for lopping and topping an ash tree without the consent of the owner, and the latter an indictment for taking fish out of a pond without the consent of the owner. According to the report of the case of R. v. Rogers, Lawrence, J., seems to have thought it necessary to call the owner of the deer for the purpose of disproving his consent, and the owner not being called, the jury were directed to find a verdict of acquittal. But this decision has been overVOL. III.26

ruled; and it is now established that the non-consent may be inferred from the circumstances under which the act was done or proved by the agents of the owner. Ante, p. 366.

(g) R. v. Turner, 5 M. & S. 206. See also Spieres v. Parker, 1 T. R. 140, and Jelfs v. Ballard, 1 B. & P. 468, by Heath, J. In R. v. Stone, 1 East, 639, the Court of King's Bench were equally divided on the point.

(h) 5 M. & S. 209.

(i) MS. Paley on Convictions by Dowling, p. 45, n. (1).